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To: capitan_refugio
As to which branch(es) of the government had the right to suspend the habeas privilege was not a point argued in the case.

Here we go again. Link, please.

1,872 posted on 09/25/2004 2:15:17 AM PDT by lentulusgracchus ("Whatever." -- sinkspur)
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To: lentulusgracchus
Here we go again. Link, please.

Here. Could you please point out who had suspended habeas corpus in this case?

1,875 posted on 09/25/2004 4:45:04 AM PDT by Non-Sequitur (Jefferson Davis - the first 'selected, not elected' president.)
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To: lentulusgracchus

There is no link to be had. I referenced a legal encyclopedia entry.


1,938 posted on 09/26/2004 12:22:16 AM PDT by capitan_refugio
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To: lentulusgracchus; capitan_refugio
As to which branch(es) of the government had the right to suspend the habeas privilege was not a point argued in the case.

From Bollman (as in the actual court ruling in Bollman, not some lawyer's argument and not the dissent as certain persons around here are inclined to dishonestly pass off as the ruling):

To enable the court to decide on such question, the power to determine it must be given by written law. The inquiry therefore on this motion will be, whether by any statute, compatible with the constitution of the United States, the power to award a writ of habeas corpus, in such a case as that of Erick Bollman and Samuel Swartwout, has been given to this court.

The 14th section of the judicial act (Laws U. S. vol. 1. p. 58.) has been considered as containing a substantive grant of this power...

...It may be worthy of remark, that this act was passed by the first congress of the United States, sitting under a constitution which had declared "that the privilege of the writ of habeas corpus should not be suspended, unless when, in cases of rebellion or invasion, the public safety might require it."

Acting under the immediate influence of this injunction, they must have felt, with peculiar force, the obligation of providing efficient means by which this great constitutional privilege should receive life and activity; for if the means be not in existence, the privilege itself would be lost, although no law for its suspension should be enacted. Under the impression of this obligation, they give, to all the courts, the power of awarding writs of habeas corpus...

...If the act of congress gives this court the power to award a writ of habeas corpus in the present case, it remains to inquire whether that act be compatible with the constitution.

In the mandamus case, (ante, vol. 1. p. 175. Marbury v. Madison,) it was decided that this court would not exercise original jurisdiction except so far as that jurisdiction was given by the constitution. But so far as that case has distinguished between original and appellate jurisdiction, that which the court is now asked to exercise is clearly appellate...

...The decision that the individual shall be imprisoned must always precede the application for a writ of habeas corpus, and this writ must always be for the purpose of revising that decision, and therefore appellate in its nature.

But this point also is decided in Hamilton's case and in Burford's case.

If at any time the public safety should require the suspension of the powers vested by this act in the courts of the United States, it is for the legislature to say so.

That question depends on political considerations, on which the legislature is to decide. Until the legislative will be expressed, this court can only see its duty, and must obey the laws. The motion, therefore, must be granted."

In other words, the court has the power to issue writs of habeas corpus under section 14 of the Judicial Act of 1789, as enacted by congress to fulfill the obligation of Article I, Section 9's habeas corpus clause. Since the court's power is constitutionally granted from Congress, only Congress may take it away and Congress had not done so. THEREFORE, pursuant to Section 14 of the Judicial Act of 1789, Bollman's writ must be granted.

For some reason, this simple term, "therefore," has always been a source of great difficulty for capitan. Why this is so remains a mystery.

there·fore ( P ) Pronunciation Key (thârfôr, -fr) adv. For that reason or cause; consequently or hence.

1,943 posted on 09/26/2004 12:43:58 AM PDT by GOPcapitalist
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